Southwestern Bell Telephone Company v. Virginia Pawlik

• Court: Court of Appeals of Texas
• Decided: July 31, 1998
• Docket: 04-96-00322-CV
• Status: Published

Opinion

No. 04-96-00322-CV

SOUTHWESTERN BELL TELEPHONE CO., Appellant

v.

Virginia PAWLIK, Appellee

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 91-CI-16412 Honorable Janet Littlejohn, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: July 31, 1998

REVERSED AND RENDERED

Southwestern Bell Telephone Company appeals the trial court's judgment in favor of Virginia Pawlik on her claim that Bell negligently investigated her complaint that her former boyfriend, a fellow Bell employee, wiretapped and monitored her telephone conversations with her current boyfriend. We hold there is no evidence Bell breached its duty to reasonably investigate Pawlik's complaint and therefore reverse the judgment and render judgment in Bell's favor.

Factual and Procedural Background

On August 1, 1989, Virginia Pawlik complained to the Federal Bureau of Investigation that her former boyfriend, a fellow Bell employee, was wiretapping and monitoring her conversations with Ed Kalka, her current boyfriend. The FBI referred Pawlik to Rob Wimmer, a former FBI agent and Bell's general security manager in San Antonio. After Pawlik presented her complaint to Wimmer, he initiated an investigation and, with the help of other Bell employees, including Tom Nolan, Bell's area security manager for South Texas, and Rex Parks, Bell's security manager in San Antonio: (1) tested the structural integrity of Pawlik's and Kalka's residential phone lines with a series of tests known as "MLTs" and also with a voltage meter; (2) when the tests on Pawlik's lines indicated unacceptable voltage fluctuations, moved her phone service to another pair of wires; and (3) physically inspected Pawlik's and Kalka's lines for wiretap devices from the interface at their residences, through the serving terminals, to the central switching office. After this investigation, Bell notified Pawlik and Kalka it had found no evidence to support Pawlik's complaint.

Dissatisfied with Bell's response, Pawlik next complained to Sergeant David Hollum in the Criminal Intelligence Division of the Texas Department of Public Safety. After reviewing Bell's investigation with Wimmer and Parks, Hollum also concluded there was no evidence to support Pawlik's complaint. The FBI reached the same conclusion.

Still dissatisfied, Pawlik took her complaint to various Bell officers, including the president of Bell's Texas Division. In each instance, the response was the same: Bell found no evidence to substantiate Pawlik's accusation. Ultimately, shortly after taking early retirement, Pawlik sued her former boyfriend; one year later, Pawlik added Bell as a defendant. Pawlik settled with her former boyfriend before trial and presented her claims against Bell to a jury. The jury found Bell negligent and grossly negligent in investigating Pawlik's complaint and ninety percent at fault in causing Pawlik's injuries. The trial court rendered judgment on the verdict for $245,000 in actual damages and $250,000 in exemplary damages and later denied Bell's postjudgment motions. Bell appealed.

Breach of Duty

Under its fourth point of error, Bell concedes it owed Pawlik a duty to reasonably investigate her complaint. But, it argues, there is no evidence it breached this duty. We agree.

Scope and Standard of Review

In reviewing a legal sufficiency complaint, we review the entire record to determine whether there is any direct evidence supporting the jury's finding. Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). If there is no direct evidence supporting the finding, we review the evidence supporting the finding "in a light most favorable to the party in whose favor the verdict has been rendered" to determine whether there are any reasonable inferences "to be indulged in that party's favor." Id.; see also Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-65 (1960). "Anything more than a scintilla of evidence is legally sufficient to support the finding." Formosa Plastics, 960 S.W.2d at 48. Evidence is less than scintilla when it "is so weak as to do no more than create a mere surmise or suspicion of its existence" and "reasonable minds cannot differ from the conclusion that the evidence lacks probative force ...." Calvert, 38 Tex. L. Rev. at 363-64.

Discussion

Pawlik pleaded Bell "did not conduct a reasonable investigation" of her complaint. To establish the parameters of a "reasonable investigation," Pawlik relies upon the testimony of Tom Nolan, Bell's area security manager for South Texas, and Rex Parks, Bell's security manager in San Antonio. Nolan and Parks testified there are three steps in investigating a wiretapping or monitoring complaint: (1) evaluate the functional integrity of the customer's telephone lines with tests known as MLTs; (2) determine if any wiretapping devices are connected to the customer's telephone line by a physical inspection; and (3) if indicated, interview witnesses.

Assuming this testimony adequately establishes the applicable standard of care, the undisputed evidence establishes Bell met the standard--it performed MLTs on Pawlik's and Kalka's residential phone lines and, when Pawlik's line showed unacceptable voltage fluctuations on a voltage meter test, it moved her telephone service to another pair of wires, and it physically inspected Pawlik's and Kalka's residential phone lines and determined there were no wiretap devices connected to either line. Because these tests did not indicate Pawlik's or Kalka's lines were being wiretapped or monitored, Bell did not initially interview any witnesses. Later, when Pawlik's complaint persisted, Bell interviewed Pawlik's former boyfriend and others. Nolan and Parks both testified Bell's investigation was reasonable.

Pawlik insists, however, Bell's investigation was deficient because, as Parks testified, it is required to use investigation methods that are likely to detect the problem complained of, and all witnesses agreed that, because MLTs present only a momentary snapshot of the line, they cannot detect intermittent monitoring. Pawlik misinterprets the testimony. As Wimmer testified, MLTs cannot and do not provide proof of wiretapping or monitoring. But they can indicate problems in the functional integrity of the complaining customer's telephone lines, and repairing these functional problems may resolve the clicks and pops customers associate with wiretapping or monitoring. Therefore, MLTs are the first step in an investigation of this nature in general and, given Pawlik's complaints, in the investigation of Pawlik's complaint in particular.

Pawlik also argues a physical inspection of the telephone lines was irrelevant because, as all witnesses agreed, monitoring does not require attaching a physical device to a telephone line. Merely because a physical inspection is unnecessary in investigating monitoring, however, does not render it irrelevant to wiretapping. And, as Bell's security experts testified, Bell investigated both as a matter of course and in Pawlik's case in particular.

Pawlik also argues Bell's investigation was deficient because it did not conduct MLTs on her office lines. The record establishes, however, Pawlik's complaints regarding her office line centered on her voice mail; for instance, her voice mail box contained a message left for another Bell employee, and someone left a country and western song recording in her box. These complaints could not properly be addressed by MLTs.

Finally, Pawlik argues Bell's investigation was incomplete because it failed to interview or investigate her former boyfriend and his jealousy of her relationship with her current boyfriend. Nolan, however, testified interviews are the third step in an investigation only if they are indicated, and no witness testified they were indicated in investigating Pawlik's accusations in light of the negative results obtained in the first two steps. Indeed, Pawlik's own expert, Lorenzo Gonzalez, testified his review did not reveal any objective evidence Pawlik's former boyfriend wiretapped or monitored Pawlik's or Kalka's telephone lines. In fact, the only evidence Gonzalez saw of any possible tampering with Pawlik's line was that both of her residential lines indicated trouble at the same time, which he believed was unusual; however, Gonzalez found no evidence these problems were caused by wiretapping or monitoring. Moreover, the record establishes without dispute that these line problems were cleared after Pawlik's service was moved to another pair of lines and retested.

Because there is no evidence Bell did not reasonably investigate Pawlik's complaint, we sustain its fourth point of error, reverse the trial court's judgment, and render judgment in favor of Bell.

Do not publish

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